A Stitch in Haste

I generally like Senator Arlen Specter (R-PA), and I'm a big fan of his proposed asbestos liability fund.

But I'm a bit befuddled by his letter to Supreme Court nominee John Roberts:

In a three-page letter to Judge Roberts, Mr. Specter raises pointed questions about two recent court decisions invalidating legislation Congress passed under its authority to regulate interstate commerce. That power has for decades been used to produce expansive legislation, including environmental protections, civil rights laws and the Americans With Disabilities Act.

The current court has been trimming back the authority, however, and Democrats have vowed to make interstate commerce a big issue in the Roberts hearings. Now Mr. Specter, a Republican who is widely regarded as the panel's sharpest constitutional lawyer, is suggesting that he shares the Democrats' concerns.
...
He said he was particularly upset that the court, under Chief Justice William H. Rehnquist, had questioned lawmakers' "method of reasoning" in striking down laws. "Well, that's just another way of saying Congress is incompetent," Mr. Specter said.

Those two pebbles in Specter's shoe, U.S. v. Lopez, 514 U.S. 549 (1995), and U.S. v. Morrison, 529 U.S. 598 (2000), that — gasp! — actually placed limits on Congressional power under the Commerce Clause, didn't in my opinion suggest that Congress was "incompetent." (This, by way of contrast, pretty much proves that Congress is incompetent. As does this, or this or this or this. Oh, and this too.)

The Commerce Clause cases weren't Congress being incompetent. They were Congress being unconstitutional. And totalitarian. And just plain wrong.

In any event, given that the medical marijuana case, Gonzales v. Raich, No. 03-1454 (2005), has now relegated Lopez and Morrison to the footnotes of history, I don't think Senator Specter has to worry about those pesky checks and balances, or that pedantic canard of "enumerated powers" or, heaven forbid, any concern that "commerce" should actually be read to mean, um, "commerce."

The Commerce Clause is dead dead dead. Senator Specter has absolutely nothing to worry about.

Other thoughts at Pejmanesque, Catallarchy, Greyhame.